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Morgan v. Foster , 208 Ga. 630 ( 1952 )


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  • 208 Ga. 630 (1952)
    68 S.E.2d 583

    MORGAN
    v.
    FOSTER, Sheriff.

    17674.

    Supreme Court of Georgia.

    Submitted November 14, 1951.
    Decided January 16, 1952.

    Wesley R. Asinof, for plaintiff.

    Paul Webb, Solicitor-General, John I. Kelley, Solicitor, B. B. Zellars, Charles O. Murphy, and Frank S. French, for defendant.

    *632 HEAD, Justice.

    1. "Code § 27-2706 specifically provides that a suspended sentence shall have the effect of placing the defendant on probation as provided by Code § 27-2705." Lester v. Foster, 207 Ga. 596, 598 (63 S.E. 2d, 402). Code § 27-2705 provides: "Every person placed on *631 probation under the provisions of this law shall, during the term of his release without the confines of the chain gang, jail or other place of detention, observe all rules prescribed for his conduct by the court, report to the probation officer as directed, and maintain a correct life." If the words, "maintain a correct life," are intended to impose any condition upon the defendant over and beyond compliance with the rules prescribed for his conduct by the court, they are too vague, indefinite, and uncertain to be given any construction or application.

    2. The present case is controlled by the rulings of this court in Cross v. Huff, 208 Ga. 392 (67 S.E. 2d, 124), wherein it was held: "Where no rules or regulations are prescribed in the alleged suspended or probated sentence, and no violation of a prescribed rule or regulation is alleged, the court is without authority to order the defendant incarcerated upon the theory that he has violated the terms and conditions of a probation sentence." Where no conditions or rules are prescribed by the court for the conduct of the defendant, his release at the direction of the court upon the payment of a fine is not a suspended or probated sentence, but an unconditional discharge. The words, "until further order of the court," appearing in the sentences in the present case, are insufficient to constitute a suspended sentence on probation.

    3. Under the foregoing rules, the judge erred in remanding the defendant to the custody of the sheriff.

    Judgment reversed. All the Justices concur.